Legal Strategies And 'Stand Your Ground' Cases

This is TALK OF THE NATION. I'm Jennifer Ludden, in Washington. Neal Conan is away. The man who Florida police first declined to arrest now faces second-degree murder charges for the shooting death of Trayvon Martin. George Zimmerman claims he is not guilty under Florida's Stand Your Ground law, which allows for the use of force in self-defense.

That law, which is enacted in at least 21 states, will now be in the spotlight. What is required for Stand Your Ground to apply? How will the law affect the prosecution's case and Zimmerman's defense? How has the law played out in the seven years since it took effect in Florida?

We're talking legal strategy and Stand Your Ground this hour, and we'll speak with a Florida defense attorney and a former prosecutor in a moment. We'd also like to hear from you. As this case plays out in court, what are your questions about the Stand Your Ground law?

Our number is 800-989-8255. Our email address is talk@npr.org. And you can join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION. Later in the program, does the bystander effect make cities mean?

But first, legal strategies and Stand Your Ground. Abe Laser is a former assistant state attorney for Florida. He's prosecuted numerous homicide cases over his career, and he joins us now by phone from his home office in Weston, Florida. Abe, welcome to TALK OF THE NATION.

ABE LASER: Thank you.

LUDDEN: The prosecution is charging George Zimmerman with second-degree murder. He maintains his innocence. Obviously, there is so much we do not know about what happened that day. But in cases like this, involving Stand Your Ground, can you explain to us: What do prosecutors need to do to make the case for murder?

LASER: Well, the case has only changed slightly by the statute. In other words, there was always a right of self-defense. Anybody could defend themselves, their persons or their homes, but before the statute was passed, you had an obligation to back up and avoid the confrontation if you didn't place yourself in additional danger.

The difference in the statute is you no longer have to back up, so that if an individual is confronted and they believe that their actions are reasonable, then they can use any degree of force, including deadly force.

Now, the problem for the prosecution, of course, is that they're going to have to rely on what I understand to be conflicting eyewitness testimony and perhaps some scientific evidence in order to persuade a jury that Zimmerman acted with the appropriate degree of ill will or malice in order to commit second-degree murder.

LUDDEN: Can you just clarify, the Stand Your Ground, it applies not only if you're in your home, but if you're out in a public place somewhere, you can stand your ground. Is that - can you tell me more?

LASER: It's true. In other words, what used to happen when people would, let's say, get into a fight at a bar with somebody at the next stool is they would have a right to use physical self-defense, perhaps punch each other back or whatever it might be. The law now says instead of that, if you have a concept in your own mind that you're likely to receive serious bodily injury as a result of the confrontation, then you don't have to run away, take a step back or anything else. You can respond with the use of deadly force.

And in Florida, what's happened quite often is these types of cases have been created in bars, neighbor fights, road-rage incidents where one person, in the past, might have been in the position to just drive away or walk away. They no longer have to do that. They can legally use any amount of force in order to defend themselves.

BILL: Yeah, good afternoon. Hello. Well, I've been curious about this from the beginning. To me, this is a mutually exclusive law, because I've not heard anyone speak of this, but wasn't Mr. Martin standing by the law when he turned to confront Mr. Zimmerman? And even if he was beating Mr. Zimmerman's head on the concrete and broke his nose, he was doing whatever he needed to do to protect himself from a man who was stalking him.

It would be like if somebody broke into your house, and you got in a fight with them, and then you were winning, so they pulled out a gun and shot you, and then they claim mutual defense. I mean, this law is so stupid.

LUDDEN: All right, Bill, thanks so much for the call there. Abe Laser, would Martin have also been able to claim Stand Your Ground, had he been alive?

LASER: I wouldn't call it a stupid law, but it is a confusing law. It's true that the person who might have started out as the person being assaulted also has a right to use self-defense, and then at the point where perhaps he's winning - in other words, where he takes physical control and starts to cause injury to the other person - then the other person can then claim, you know, I never expected it to get to this point. Now I need to use deadly force in order to protect myself.

LUDDEN: That does sound confusing.

LASER: And I think, ultimately, that's the type of issue that's going to come to trial in this case: Who had the right to use force, what degree of force, what level of force and under what circumstances - in other words, what happened in that last minute that I guess all of us have been left out of the news accounts?

LUDDEN: All right, we also have Richard Hornsby on the line. He's a criminal defense attorney and legal analyst in Florida, and he's defended clients in Stand Your Ground cases. He is joining us by phone from his office in Orlando. Welcome to you.

RICHARD HORNSBY: Thank you for having me.

LUDDEN: Let's just update listeners, here. George Zimmerman appeared at a very brief court appearance today. A judge set an arraignment for late May, and Zimmerman left the court. Can you tell us what happens with him now?

HORNSBY: Well, between now and the arraignment, what'll happen is first, a bond hearing will likely be scheduled for sometime next week. The defense attorney will also file a demand for notice for discovery, and between now and the arraignment, he should be provided with all the discovery that the prosecutor has.

Then he will review that discovery, and he will make a determination if he thinks there's any challenges to the legality of charging Mr. Zimmerman with second-degree murder. If he finds there's any proper challenges to make, he'll file a motion to dismiss before the arraignment.

If he decides there are no challenges worth making before the arraignment, he'll file a written plea of not guilty, and that arraignment will actually be waived, and it will never be held by the judge. Then after that, the next major thing I think the public will get to see is there will likely be a hearing on the Stand Your Ground motion, the defense - what we call an immunity hearing, where George Zimmerman will have to present evidence to establish that he was legally defending himself.

And if he establishes that by a preponderance of the evidence, then the judge will be required to dismiss the charge.

LUDDEN: Now, right, so this actually happens before any jury gets involved at all, right? I mean how - is this like a mini - almost a mini-trial before the judge? What happens?

HORNSBY: What it is, it's a non-jury trial. It's exactly the best way to think about it. The judge would hear all the evidence that the defense has. He would also hear all the evidence that the state attorney has in rebuttal to the defense. And then he will simply decide: Am I convinced by a preponderance of the evidence, based upon the evidence that I've heard, that the defendant was lawfully defending himself on that day?

And if the judge makes the determination he was lawfully defending himself, he's authorized by the statute, and he's actually mandated by the statute to dismiss the charge and find that Mr. Zimmerman is immune from further prosecution.

LUDDEN: But this is without witnesses or other testimony?

HORNSBY: No, not at all. No, not at all. When I - the only difference between the hearing and the trial is there will be no jury involved. George Zimmerman will have to testify. George Zimmerman's attorney will have to call any witnesses that he thinks are favorable to establishing the self-defense, whether it's medical records, whether it's phone records, whether it's witnesses that saw the - parts of the incident.

George Zimmerman's attorney will first call all these witnesses. It'll be a full-blown hearing. It'll probably take several days. Then once George Zimmerman's attorney rests, the prosecution will call whatever witnesses they have. Likely, we'll hear from every witness that would be - testify at the trial, if there was one.

And then after the judge hears from all these witnesses, then he'll - well, actually it'll be a she. The judge is going to be a female. She will make a determination of whether or not George Zimmerman, as a matter of law, was lawfully defending himself.

LUDDEN: So Stand Your Ground will really be the first thing that the judge takes up in this case, before it even goes to any trial, any jury. (unintelligible)

LUDDEN: How effective is the self-defense argument under Stand Your Ground? I mean, is this a classic case, or is it questionable, in this case? I mean, in terms of - this has been, in effect, seven years now down there.

HORNSBY: Well, as far as Stand Your Ground, I mean, here's what I - my personal opinion is that the procedure for Stand Your Ground, giving a judge the ability to review the evidence before having to require someone to go all the way to a jury to determine whether or not someone was defending themselves I think is a good check and balance on the prosecutorial power, because many times you have people that get in arguments that get in, you know, fistfights and things of that nature.

And generally, it's whoever complains to the police first is the one who's considered the victim, and the other person is considered the defendant, when, you know, very likely both of them may have thought they were defending themselves.

And this allows the judge to say, you know what? More likely than not, the person was defending themselves, and he shouldn't have to stand trial for a criminal offense when, in reality, he was most likely defending himself.

Is it successful? No, I would not say that people are filing these motions left and right and winning. You know, I've filed maybe 15 motions, Stand Your Ground motions to dismiss, since the law has been implemented, and I've only won two or three of them at the - you know, in front of a judge. Because, again, the judge has to believe the defendant's version of the events and believe the defendant was reasonably defending himself.

And many times, if you have, you know, a defendant and a victim come in, and they're both equally credible, it's sometimes hard for the defendant to meet that burden. The judge says, well, I think a jury should decide this.

You know, the big issue in George Zimmerman's case is, of course, Trayvon Martin isn't around to tell his side of the story, and so the prosecutor is going to have to tell Trayvon Martin's story through circumstantial evidence and things of that nature.

LUDDEN: Abe Laser, is this pretrial hearing a good check and balance, in your view?

LASER: Actually not. I think that the statute, even during all my years as a prosecutor, makes no sense whatsoever. If a person is, in fact, defending themselves, that's a question for the people who try cases - in other words, for the juries to decide whether or not at that moment the person reasonably felt it was necessary to use a certain amount of force.

Now what you have - let's take this situation. You've got a one-witness case. You've got Zimmerman. You certainly don't have Martin. So whatever the state wants to put on has to be all circumstantial.

And the judge gets to decide which side she believes, by a preponderance of the evidence or the greater weight of the evidence. Well, it may be a situation where the judge says, listen, I've only got one version and some interesting circumstances. Maybe I've got no choice but to go ahead and dismiss the charges against him.

I think a jury is much more likely to look at the case and say, well, wait a minute. We have this tape recording that gives us some information. We have the fact that Zimmerman brought a gun...

LUDDEN: You know what? We're going to have to drop it there. We will talk more in just a few moments. Gentlemen, if you could stay with us. We're talking with a former prosecutor and defense attorney about the issues raised in the Trayvon Martin case and the Stand Your Ground law. What are your questions? 800-989-8255. I'm Jennifer Ludden. It's TALK OF THE NATION, from NPR News.

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LUDDEN: This is TALK OF THE NATION from NPR News. I'm Jennifer Ludden. George Zimmerman made his first appearance in court about an hour ago, more than six weeks after he says he shot and killed Trayvon Martin in self-defense. Dressed in a gray prison jumpsuit, he's now a defendant facing charges of second-degree murder.

The judge said he found probable cause to move forward with the case. Zimmerman will be arraigned next month - excuse me, next month. His lawyer did not ask for bail, and according to the Reuter's wire service says that's because, quote, "it might only arouse the fervor around this case."

There's still a lot we do not know about the facts in the case. We're talking generally today about legal strategies in cases involving the Stand Your Ground law. As this plays out in court, what are your questions about Stand Your Ground? Our number is 800-989-8255. Our email address is talk@npr.org, and you can join the conversation at our website. Go to npr.org, and click on TALK OF THE NATION.

Our guests are Abe Laser, a former assistant state attorney in Florida. He has prosecuted homicide cases for over 20 years. And also Richard Hornsby, a criminal defense attorney and legal analyst who's defended clients in Stand Your Ground cases. And we have a caller on the line, Tiff(ph) in Des Moines. Hi there.

TIFF: Hi.

LUDDEN: Go right ahead.

TIFF: My statement is that when you say Stand Your Ground, that means you don't move when someone's attacking you. And what Zimmerman did was he chased a guy down in car and on foot, and the guy wasn't doing anything. So how was that called standing your ground? He wasn't being attacked by Trayvon Martin, and no fight would have occurred if he had not chased the guy.

LUDDEN: All right, Tiff, thank you so much for the phone call. We have an email as well from Lauren(ph) in Belle Forge, Louisiana, who says - refers to the phone conversation Zimmerman had when he called 911, I believe, and was told not to pursue Trayvon Martin. Does that have a bearing in this, Richard Hornsby?

HORNSBY: I'm sorry, what was the question?

LUDDEN: Does the fact that George Zimmerman was told by 911 to not continue pursuing Trayvon Martin, would that have an effect in determining whether Stand Your Ground applies?

HORNSBY: Yes, because here's the question that ultimately must be asked by the judge or the jury when they're deciding whether or not George Zimmerman was engaged in lawful self-defense. The first question they have to ask is: Was his use of force under the circumstances reasonable?

So that - I think that can be a factor, but my personal opinion is this: George Zimmerman has apparently given a very specific scenario of what happened, and his scenario isn't that he got out of the car waving his gun, chasing this Mr. Martin down. His scenario is that he got out of the car trying to keep tabs on him and eventually turned back and was going back to his car.

If that is the case, it's almost irrelevant all these other things that people are upset about, him getting out of the car, the fact that he had a concealed weapon on him. That's not the issue. If - either Trayvon Martin really did come up and just basically punch him and then get him on the ground and start bashing his head against the sidewalk, or he didn't.

And if you believe George Zimmerman's version, that he got punched without provocation, and I don't mean by simply - that's not - following somebody is not provocation to get punched, and he had no other resort because he was on the ground, and he couldn't retreat even under the old law if he wanted to. Well, that's a pretty clear-cut case of self-defense.

But if the judge rejects that version, then it's really irrelevant what these other things are because the judge has made the decision that, you know, he's lying, and therefore he's not a credible witness. But if the judge believes that Trayvon Martin hit him, and then he fell to the ground, well, it didn't really matter all these other things that he got out of the car. Those aren't legal - they're not illegal. They are things that can be considered if the altercation happened under different circumstances.

But under the circumstances that George Zimmerman describes, I just fail to see, you know, what other options he would've had. He's not the one who asked Trayvon Martin to punch him if his version is the truth.

And I'm not saying it is. I'm just saying but if that's what the judge believes, it's very clear-cut. If you believe George Zimmerman, he was lawfully defending himself. But if you don't believe that version, there is evidence that refutes his version, well then he wasn't lawfully defending himself.

LUDDEN: All right, let's bring Geoffrey Corn into the conversation. He's a professor of law at the South Texas College of Law and expert in criminal and Stand Your Ground statutes, and he's with us via an iPhone from his office in Houston, Texas. Welcome to TALK OF THE NATION.

GEOFFREY CORN: Good afternoon.

LUDDEN: So Geoffrey Corn, you look at Stand Your Ground laws across the country, right? Can you give us a sense of how effective they have been? How have they changed, if much at all, the strategy here when it comes to prosecuting crimes?

CORN: Well, first off, I'd like to echo what Abe started the discussion with, which is that Stand Your Ground really is just a modification of a long-standing principle of self-defense, which is if you believe reasonably that flight from the threat is not a feasible means of protecting yourself, then historically you could always Stand Your Ground.

What Stand Your Ground statutes have done is they've removed the requirement to even contemplate retreating from an imminent threat of death or grievous bodily harm. And, you know, that's a policy decision that the legislature makes, and in a sense it can be somewhat understood if you think that most threats that lead to the use of homicidal self-defense come from weapons, then the retreat option is rarely going to be viable.

I think the problem with it, though, is that it's very confusing for the public and I think also confusing for the media when we have events like this. And in that regard, I think it's very important that people take a step back and recognize that Stand Your Ground and the retreat requirement are only one element of a number of elements that dictate whether a use of self-defense is reasonable.

One of those elements is the rule that you cannot be the first aggressor. So your first caller asked the question, or made the point. He said the law seems self-contradictory because if Zimmerman attacked Trayvon, then Trayvon had a right to stand his ground.

Well, under Florida law, like most law, if you are the first aggressor in a confrontation, you forfeit the right to self-defense. So if Zimmerman, if a court or a jury determines that George Zimmerman somehow attacked Trayvon Martin, maybe by grabbing him or some other means, then Zimmerman can't claim the right to stand his ground because he's forfeited his right to defend himself because of his initial aggression.

LUDDEN: And that's what the pretrial judge will decide right off the bat.

HORNSBY: Well, can I chime in there?

LUDDEN: Please, and tell us, who is this?

HORNSBY: This is Richard Hornsby.

LUDDEN: Go ahead.

HORNSBY: I disagree with - under Florida law that that's necessarily the case because Florida law specifically has a statute on dealing with the aggressor, and it does say that even if you start a - let's assume that George Zimmerman's following somebody constitutes being the aggressor, which I disagree that legally that can be considered him being the aggressor.

If in fact all he did was grab Trayvon Martin and say hey, who are you, you know, identify yourself, which frankly I think a citizen has the right to do of a stranger in a neighborhood, if Trayvon Martin in turn not only punched him but then kept on bashing his head into the sidewalk, like George Zimmerman says, well, then the law is very clear under the aggressor statute that if the force that responds to you is disproportionate to the force you used, you can in fact then defend yourself.

That's Florida's law, and I mean, it's Florida...

CORN: And to agree with that, that's a very common application of the first aggressor rule. If you are the first aggressor, and the person that was the victim of your aggression responds excessively, or if you withdraw, and then the person is continuing to attack you, then your right of self-defense is restored.

The point is ultimately that's going to be a question of fact, and so while I agree with that point on the qualification to the first aggressor rule, I don't believe that a citizen has a right to apprehend another citizen just because they're wondering what they're doing in a neighborhood.

But the point I'm trying to make is that there are going to be other issues other than whether George Zimmerman had a right to stand his ground that are going to be relevant to the assessment of a claim of self-defense. And it's true, we have two very different versions of events.

Abe made the point that if everything George Zimmerman, we're hearing through his surrogates, is true, then it sounds like he's got a credible claim of self-defense. But assessing whether a defendant's assertion of what actually happened is true or is not true is the function of the jury. And the jury is going to look at all the circumstances surrounding the event to decide whether or not they should believe what the defendant is saying occurred.

And there are multiple aspects of this that have to play out that transcend just the issue of Stand Your Ground.

LUDDEN: All right, let's bring another caller in, Carlos(ph) in - is it Ocala, Florida?

CARLOS: It's Ocala, Florida, yes.

LUDDEN: Go right ahead.

CARLOS: Well, my question is: After the hearing, will these types of laws, like the Florida Legislature, will they have re-examine the laws when other states have had these laws, or once a decision is made, it'll justify these laws? I just wanted the opinion of all the people involved.

LUDDEN: OK, great, let's start with Geoffrey Corn. Nationally, what do you think the impact, if any, will be on Stand Your Ground laws from this case?

CORN: I think it's very interesting. There was a press conference I think...

LUDDEN: Oh dear, and we've lost Geoffrey Corn. Are you on your phone there? All right, hopefully we'll get Geoffrey Corn back. Abe Laser in Florida, what impact do you think that this case may have on Stand Your Ground law, if at all there?

LASER: Well, I hesitate to say anything about what my legislature might be doing. They do strange things every spring. I think if everybody steps back and analyzes the circumstances of this case, I think the truth is there's no reason to have a Stand Your Ground law. And if I can sort of play that out, I don't think based upon Zimmerman's explanation to the police that he has a valid Stand Your Ground claim. He's not saying that he was assaulted frontally and then made a decision not to retreat because he thought he had to use deadly force.

He's basically saying old-fashioned self-defense: I was struck, I was knocked down, I was on the ground, and I had to physically defend myself. There's nothing added to his claim by the Stand Your Ground law, and I would love to have legislatures around the country look at it and say, you know, this worked for 220 years and we don't need to add anything to it. If you've got a right of self-defense, great. And if you don't have a right to defend yourself, if you think it's OK to shoot somebody because their dog pooped on your lawn, then we don't agree with that, and it's a crime.

LUDDEN: Richard Hornsby, a defense attorney, would you like to see this law be called into question, or do you like having it there?

HORNSBY: Well, first, I'd like to - here's the thing, the Stand Your Ground law actually modified three different statutes in Florida, and it did three different things. One, it did remove the duty to retreat whenever you're confronted with violence against you. That's the primary one that everybody talks about. The second thing it did is it implemented the pretrial hearing that we've been discussing for the last 15 minutes that allows a judge to dismiss it after hearing all the evidence.

The third thing it did, which is one thing I do think needs to be changed, is it stated that a law enforcement officer can't arrest a person unless they determine that the deadly force used was unlawful or the force used was unlawful. And that seemed to be the thing that created all the outrage in this case is that George Zimmerman was never arrested. The way it used to be is that if you killed somebody, you were arrested, period. And then you could go before the judge, you know, and assert your affirmative defense and, you know, establish why you were justified in killing somebody or committing any crime for that matter that involved violence against somebody.

But the legislator made it to where, no, if the law enforcement has a credible claim of self-defense, they have to actually consider that before determining whether or not they can make an arrest. So that portion of the law that was implemented under Florida Stand Your Ground Act, which, again, it's actually enacted and changed three different statutes, I think, should be removed.

But let's be clear here about a few little things that I think gets lost in the uproar about Stand Your Ground. One, even under the old law, you had no duty to retreat if someone attacked you with their fists, meaning if Trayvon Martin would have come up to George Zimmerman and punched him in the face, George Zimmerman would've had no duty to first retreat. He could have responded back with physical force if he wanted to, not deadly force, just physical force. However, even under the old law, if Trayvon Martin would have gotten George Zimmerman to the ground and to a position where he no longer could retreat because Trayvon Martin is - allegedly was on top of him, beating his head into the ground, even under the old law, that would have been considered retreating to the door, meaning you had no other routes of escape, and then you can resort to deadly force.

The only catch, though, is that that would've had to have been a determination by the jury about whether or not that was true or not, not a judge. And so, you know, all this stuff about Stand Your Ground, you know, the castle doctrine, even under the old law, everything would have been implied exactly the same, except for the part about a judge can consider the issue. And, you know, and this isn't about a dog pooping on a lawn. This is about a 17-year-old kid who essentially was - if George Zimmerman is true, I'm not saying he is - was banging George Zimmerman's head in the ground, I would think of circumstances any person will have the right to use deadly force if they thought that the other person was going to kill them.

LUDDEN: All right. Let me just remind listeners that you're listening to TALK OF THE NATION from NPR News. Bethel(ph) is - I'm sorry. Derrick(ph) is on the line from Bethel, Connecticut. Hi, Derrick.

DERRICK: Hi. How are you?

LUDDEN: Good. Go ahead.

DERRICK: Well, I am not trying to argue the fact whether or not it was an unjust Stand Your Ground shooting. I'm just trying to ask the two attorneys on the phone right now whether they feel there's any way possible to get a fair and unbiased impartial jury for this case as - with all the media coverage that has gone on since the shooting occurred.

LUDDEN: Good question, Derrick. Thank you so much. Abe Laser, first.

LASER: I hate to say this, but over the years, I've tried many high-profile cases, and I'm always astounded with how many people don't read newspapers, listen to NPR or...

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LASER: ...watch CNN or anything else, and in fact, have no idea what we're talking about when we ask them about their familiarity with the case. I don't know whether that's going to be true in a small community like Sanford. But I would be surprised if you cannot either get a jury in Sanford or get one very close to Sanford of 12 people who just have no idea what this case is about.

LUDDEN: Richard Hornsby, briefly, does it concern you, a fair trial?

HORNSBY: Two words: Casey Anthony.

LUDDEN: Yeah. The last big case...

HORNSBY: (Unintelligible).

LUDDEN: ...down there in Florida. So you...

LASER: And that was a case in which they selected a jury in Tampa, brought them into Orlando to try the case. But, obviously, everybody based upon what was going on on television had a certain view of what was likely to happen, and 12 jurors, who claimed that they didn't know anything about the case, listened and made what seemed to be a contrary decision.

LUDDEN: All right. We have Geoffrey Corn back. Do we not? Hello, Geoffrey.

CORN: Yeah. I'm sorry (unintelligible)...

LUDDEN: Hi. Sorry that technology is great when it works and terrible when it doesn't. So we lost you when you were - I was asking, do you think that this case will have a broader impact on Stand Your Ground laws across the country?

CORN: Well, as I said, I mean, I don't think - I don't know how you can say it hasn't already had a broader impact. People are talking about the law. They're questioning whether or not the law is resulting in overaggressive assertions of homicidal self-defense. I think both the - your other experts are absolutely right. If the law is properly understood, it doesn't radically change anything that didn't exist before the law. My concern - and I think the concern of many, including Mayor Bloomberg and the group that was speaking yesterday at the press conference - is that the public generally doesn't understand that the issue of Stand Your Ground or retreat is only one component of the right of self-defense.

And the danger is that the law is misunderstood as a justification to use force whenever you subjectively believe you need to, and that's not the law. You're subjective decision that you have an imperative need to use deadly force is not what controls whether or not it was legally justified.

LUDDEN: And we're going to have to leave it there. I'm so sorry. Geoffrey Corn, professor of law at South Texas College, thank you so much. We've also been joined by Abe Laser, a former assistant state attorney in Florida, and Richard Hornsby, a criminal defense attorney there. Coming up, are cities really meaner? I'm Jennifer Ludden. It's TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright National Public Radio.